Argued January 6, 1997
Decided February 6, 1997
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered April 11, 1996, which affirmed an order of the Rensselaer County Court (Patrick J. McGrath, J.), denying a motion by defendant, made pursuant to CPL 440.30 (1-a) for the performance of forensic DNA testing on specified evidence.
In June 1989 defendant was indicted for various counts of rape, sodomy and sexual abuse as the result of a May 29, 1989 incident in which, a jury ultimately determined, defendant subjected a 16-year-old female victim to forcible sexual intercourse. Defendant's convictions of rape in the first and third degrees, and sexual abuse in the first degree, were affirmed on direct appeal ( 174 A.D.2d 848). Following an unsuccessful postconviction motion and appeal, defendant moved for an order requiring the DNA testing of a sample of the sperm cells taken from the victim, based on the Legislature's 1994 addition of a new CPL 440.30 (1-a) (L 1994, ch 737).
John T. Casey, Jr., Albany, for appellant.
Kenneth R. Bruno, Acting District Attorney of Rensselaer County, Troy ( Bruce E. Knoll of counsel), for respondent.
People v Kellar, 218 A.D.2d 406, appeal dismissed.
Defendant's appeal should be dismissed, and the matter remitted to the Appellate Division for dismissal of defendant's appeal to that court. County Court's order denying defendant's motion pursuant to CPL 440.30 (1-a) is not appealable to the Appellate Division as of right ( see, CPL 450.10), and an appeal of such an order to the Appellate Division is not available under CPL 450.15. When the Legislature enacted CPL 440.30 (1-a) in 1994, it made no provision for appeal of orders emanating from applications for relief under that remedial section, nor did it add to the list of prescribed authorizations for appeals under CPL 450.10 or 450.15. Because the County Court order is not appealable to the Appellate Division, no appeal from the Appellate Division order lies in this Court ( see, CPL 450.90).
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, CIPARICK and WESLEY concur in memorandum; Judge LEVINE taking no part.
Appeal dismissed, etc.